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Litigation Limbo

Jennifer Sherber, JD
KAMMCO Vice President of Claims
 Med-IQ Logo
The novel coronavirus (COVID-19) has suspended many court functions leaving uncertainty about how the resulting case backlog will be managed once operations return. In November 2020, many courts in Kansas and Missouri issued orders suspending jury trials and other proceedings, as well as scaling back other courthouse activities in response to the sharp nationwide rise in COVID-19 cases. The recent surge in new court orders related to COVID-19 marks a pause in efforts by courts to resume full operations and will cause delays for those involved in litigation.

In Kansas and Missouri, in response to COVID-19, most medical professional liability jury trials have been continued and rescheduled. Prior to March of 2020, KAMMCO defended three insureds at trial. At that time, we had 31 trials scheduled to take place between March and December 2020. While several of those cases may have been dismissed or resolved prior to the end of the year, we will still face a significant backlog once trials resume. One trial, for example, was scheduled in a densely populated Kansas county for May of 2020. This trial has now been scheduled to take place in the fall of 2021 (approximately 17 months after the original trial date).

Despite the lack of jury trials, discovery and other pre-trial activities continue. Most recently these activities have, to the extent possible, taken place via telephonic or virtual conferences. While it is beneficial to continue with discovery and pre-trial matters, courts will struggle to manage the backlog once it is safe to resume. Issues to consider include: the backlog of criminal cases which garner precedence due to the constitutional right to a speedy trial, court limitations, and the logistics. In addition, many medical malpractice cases involve multiple defendants, defense attorneys, and large numbers of experts – all of which present their own set of scheduling issues.

KAMMCO has historically maintained a 24-month average time period from opening a claim to closing a claim. While this seems like a long time period, it is much quicker than the average for the industry. Given COVID-19 and the resulting court delays, many claims will remain open longer which is unfortunate for our insureds as litigation is stressful.

Once trials resume, Kansas district and appellate courts will be required to comply with the December 1, 2020 Administrative Order 2020-PR-123 issued by Chief Justice Marla Luckert of the Kansas Supreme Court. The Order outlines the procedures these courts must comply with which include the following: 1) Orders of the Supreme Court and Chief Justice, including 2020-PR-124 requiring masks in district and appellate courts; 2) all COVID-19 Safety Directives of the Office of Judicial Administration; 3) any applicable orders or guidance from local public health officials; 4) any orders issued by the Kansas Governor; 5) all guidelines covered by the Ad Astra: A Plan to Reopen Kansas; 6) any applicable guidelines of the Occupational Safety and Health Administration; and 7) the guidelines from the Kansas Department of Health and Environment. If any provisions of this list conflict, the Order indicates that the most restrictive provision must be followed. The Order further recommends courts continue to expand the use of remote hearings as much as possible to reduce any backlog and to dispose of new cases efficiently and safely.

Given these restrictions, civil cases may be slow moving as we move forward. However, several counties have entertained conducting jury selection and/or trial in other facilities such as fairgrounds, convention centers, etc. which would allow for social distancing.

As we navigate these unusual times, we will continue to monitor our cases and discuss options as they arise with our defense attorneys and insureds.

Mentors are available at any stage of litigation and are happy to share their experiences and suggestions for dealing with litigation stress as well as frustrations caused by delays. To request a mentor, contact Monica Malone at mmalone@kammco.com or at 1-316-681-8211. As always, we are here when you need us.

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